62 U. Miami L. Rev. 625 (2007-2008)
Compromising Liberty for National Security: The Need to Rein in the Executive's Use of the State-Secrets Privilege in Post-September 11 Litigation

handle is hein.journals/umialr62 and id is 633 raw text is: Compromising Liberty for National Security:
The Need To Rein in the Executive's Use
of the State-Secrets Privilege in
Post-September 11 Litigation
STEPHANIE A. FICHERA*
I. INTRODUCTION
The War on Terror has been plagued by charges of unitary execu-
tive misconduct and defiance of our nation's laws and constitutional val-
ues. Troubling cases have surfaced from the War on Terror in which
U.S. citizens and foreign nationals alike have sought relief for wrongs
allegedly suffered at the hands of the federal government, including
claims of unlawful detention, prisoner abuse, and unwarranted surveil-
lance. Many of these cases involve executive assertions of the state-
secrets privilege-a doctrine powerful enough to cause the outright dis-
missal of an entire lawsuit at the government's behest. The state-secrets
privilege is a common-law evidentiary privilege that enables the Execu-
tive to shield from disclosure information purportedly containing state
or military secrets on the basis that the disclosure of such information
would jeopardize national security.' The consequences of a successful
assertion of the privilege are assumed primarily by private litigants-in
addition to the American public as a whole-because the privilege
often results in the dismissal of a plaintiff's case and allows the govern-
ment to avoid meddlesome litigation, embarrassing disclosure of infor-
mation, and accountability for wrongdoing. Moreover, a court-approved
invocation of the state-secrets privilege imposes another substantial cost:
it compromises civil liberties, rights of individual litigants, and funda-
mental constitutional values in favor of a promised enhancement of
national security.
This note focuses on two recent cases, El-Masri v. United States2
* J.D. Candidate 2008, University of Miami School of Law; B.A. 2005, Boston University.
The author wishes to thank Professor Stephen Vladeck for his invaluable guidance in the
development of this article and her family and friends for their support.
1. See, e.g., Hepting v. AT&T Corp. (Hepting II), 439 F. Supp. 2d 974, 980 (N.D. Cal.
2006); Meredith Fuchs, Judging Secrets: The Role Courts Should Play in Preventing Unnecessary
Secrecy, 58 ADMiN. L. REv. 131, 134 (2006).
2. El-Masri v. United States (EI-Masri II), 479 F.3d 296 (4th Cir. 2007), cert. denied, 128 S.
Ct. 373 (2007); El-Masri v. Tenet (El-Masri 1), 437 F. Supp. 2d 530 (E.D. Va. 2006).

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